The 3 Reasons Obama Won't Unilaterally Shut Off NSA Phone Surveillance

After 12-and-a-half years, President Obama will ask Congress to end the collection of metadata on Americans' phone calls. But he runs the NSA; why not just shut it off?

After 12-and-a-half years, President Obama will ask Congress to end the collection of metadata on Americans' phone calls. But he runs the NSA; why not just shut it off? For several reasons: First, to rescind the ability of the NSA to collect the data in the future. Second, to share the political risk. And, third, to have someone to blame.

From a political perspective, the program has been an all-but-unqualified disaster. Launched in 2001 in the immediate wake of the passage of the Patriot Act, the metadata collection wasn't publicly reported until May of 2006. At that point, in the wake public pressure, the Bush administration asked the secret Foreign Intelligence Surveillance Act Court to grant retroactive approval for the collection under Section 215 of the Patriot Act, as this New Yorker timeline notes. Both Bush and Obama argued that the program was a vital tool in the effort to curtail terrorism. But, "The government has been unable to point to any thwarted terrorist attacks that would have been carried out if the program had not existed," The New York Times says in its report on Obama's proposal. As of last summer, the program only collected 30 percent of all phone metadata anyway.

After the Edward Snowden revelations began last year, Obama appointed a panel to review NSA surveillance. It recommended ending the NSA's collection of metadata and having information held by phone companies instead. Obama asked the Department of Justice to come up with a plan to do so by this Friday, when the metadata program needs to be renewed. Under Obama's plan, the program would be renewed one more time, for 90 days, and then phone companies will hold the data — as they already do. If the government wants information on someone's phone calls, it can ask the FISA Court for a warrant and then request "data about any new calls placed or received after the order is received" from the phone companies.

Since the FISA Court already approved the collection of metadata (and has done so every 90 days), revoking the legal authority in the Patriot Act is the only way to ensure that the metadata collection program ends over the long run. Whether or not it would have passed Supreme Court scrutiny, Section 215 serves as the legal justification for the collection. Explicitly remove that authority, and the metadata program ends. But that's only part of the reason Obama wants Congress to weigh in.

It is also in part to put Congress on the record in opposition to the program. As we noted in January, there's a natural political inertia to programs meant to stop terrorism. The metadata collection is often defended on the grounds that it might have helped investigators uncover links between 9/11 terrorists in advance. If the president unilaterally ended the program and a terror attack followed, it wouldn't take long for Obama to be blamed for weakening America's defenses to the detriment of American lives. It's like that rock that Lisa offers Homer in a classic episode of The Simpsons, suggesting that it will keep tigers away. Homer, not willing to risk a tiger attack on the streets of Springfield, readily offers to buy it from her. Obama's got a tiger-preventing rock in his pocket; why throw it away?

Obama has done this before. Last summer, after evidence emerged that Syria had attacked a rebelling city with chemical weapons, Obama asked Congress for authorization to strike back against Bashar Assad. He was prepared to act without Congressional approval, he said, but wanted Congress to sign off. It didn't; happily for the president, Secretary of State John Kerry stumbled into a solution that averted a political crisis.

There are a number of existing proposals on Capitol Hill to scale back NSA surveillance, as the Times notes, and it's not clear how this proposal — or any of them — will fare once they're taken up by the notoriously unpredictable members of the House and Senate. For Obama, after months and months of bearing the blame for NSA surveillance from the public and from vocal opponents on Capitol Hill, forcing Congress to rise to the program's defense is a small victory no matter what happens. If members of Congress agree with him, blame is shared. If they disagree, it's their fault.

Why, then, wouldn't he make it up to Congress?